Com. v. Hart, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN HART :
:
Appellant : No. 2209 EDA 2019
Appeal from the PCRA Order Entered July 30, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004175-2012
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: Filed: December 30, 2020
Appellant, John Hart, appeals from the order denying his petition for
relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
On November 16, 2011, Appellant was arrested and charged
with Identity Theft, Disruption of Service, Possession of
Instruments of Crime, Harassment, Unlawful use of a Computer[,]
and Stalking. On November 12, 2015, a jury found Appellant
guilty of Harassment and Stalking.[1] On May 26, 2016[,]
Appellant was sentenced to a term of state incarceration[2]
followed by two (2) years probation. Post-Sentence Motions were
denied on September 20, 2016 followed by a timely Notice of
____________________________________________
1 18 Pa.C.S. §§ 2709(a)(4) and 2709.1(a)(1).
2 The term of incarceration was two and one-half years to five years.
Sentencing Order, 5/26/16, at 1.
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Appeal. The Superior Court of Pennsylvania [affirmed Appellant’s
judgment of sentence on May 22, 2018].
On September 3, 2018[,] Appellant filed a counselled
petition pursuant to the [PCRA], raising two hundred and fifty-one
(251) points toward his PCRA claims along with a request for
Evidentiary Hearing and/or new trial. Appellant also requested an
expedited hearing as his sentence was to expire on November 11,
2018. The expedited hearing request was denied on September
18, 2018. At that time the matter was continued for the
Commonwealth’s response to the PCRA Petition with a status date
of December 18, 2018. Ultimately, on July 30, 2019, the [c]ourt
issued an order dismissing the PCRA without a hearing. This
timely appeal followed on July 31, 2019.
PCRA Court Opinion, 12/4/19, at 1-2. Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issues for our review:
I. Whether the trial court erred in ruling that it did not have
jurisdiction to entertain the PCRA Petition and in denying Mr.
Hart’s request for an expedited hearing where Mr. Hart’s probation
was two months from its termination date when Mr. Hart filed the
PCRA Petition.
II. Whether the trial court erred in denying the PCRA Petition
where trial counsel was ineffective in failing to object and move
for a cautionary instruction or mistrial when Mr. Hart’s parole
agent provided quasi-expert testimony on speech patterns based
solely on his undergraduate degree in Communications from
Pennsylvania State University.
III. Whether the trial court erred in denying the PCRA Petition
where trial counsel was ineffective in failing to obtain a voice
expert sufficiently in advance of trial and appellate counsel was
ineffective in failing to appeal the trial court’s ruling precluding the
use of a voice expert.
IV. Whether the trial court erred in denying the PCRA Petition
where appellate counsel was ineffective in failing to appeal the
denial of Mr. Hart’s Motion to Dismiss Pursuant to Pa.R.Crim.P.
600.
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V. Whether the trial court erred in denying the PCRA Petition
where appellate counsel was ineffective in failing to appeal Mr.
Hart’s motion to dismiss for a violation of his constitutional right
to a speedy trial.
VI. Whether the trial court erred in denying the PCRA Petition
where trial counsel was ineffective in failing to object to the
admission of incomplete text messages which cast Mr. Hart in an
unfair negative light on the basis of the rule of completeness.
VII. Whether the trial court erred in denying the PCRA Petition
where appellate counsel was ineffective in failing to appeal the
denial of Mr. Hart’s motion to suppress.
VIII. Whether the trial court erred in denying the PCRA Petition
where appellate counsel was ineffective in failing to appeal the
denial of Mr. Hart’s collateral estoppel motion.
IX. Whether the trial court erred in denying the PCRA Petition
where trial counsel was ineffective in failing to object to testimony
relating to IP addresses on the basis that such testimony was
inadmissible hearsay and inappropriate expert testimony, a[n]d in
the alternative, whether appellate counsel was ineffective in failing
to raise this issue on appeal.
Appellant’s Brief at 4-6.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)
(internal punctuation and citation omitted). Here, the PCRA court determined
that Appellant was ineligible for PCRA relief because he is no longer serving a
sentence of imprisonment, probation, or parole for his crimes. PCRA Court
Opinion, 12/4/19, at 3-5. We agree.
The PCRA “provides for an action by which persons convicted of crimes
they did not commit and persons serving illegal sentences may obtain
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collateral relief.” 42 Pa.C.S. § 9542. In order to be eligible for relief under
the Act, a petitioner must, initially, plead and prove by a preponderance of
the evidence:
That the petitioner has been convicted of a crime under the laws
of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or
parole for the crime;
(ii) awaiting execution of a sentence of death for the crime;
(iii) serving a sentence which must expire before the person may
commence serving the disputed sentence; or
(iv) has completed a sentence of imprisonment, probation or
parole for the crime and is seeking relief based upon DNA evidence
obtained under section 9543.1(d) (relating to postconviction DNA
testing).
42 Pa.C.S. § 9543(a)(1)(i)-(iv).
Our [S]upreme [C]ourt has held that, to be eligible for relief under
the PCRA, the petitioner must be “currently serving a sentence of
imprisonment, probation or parole for the crime.” 42 Pa.C.S.[ ]
§ 9543(a)(1)(i). As soon as his sentence is completed, the
petitioner becomes ineligible for relief, regardless of whether he
was serving his sentence when he filed the petition. In addition,
this [C]ourt determined in Commonwealth v. Fisher, 703 A.2d
714 (Pa. Super. 1997), that the PCRA precludes relief for those
petitioners whose sentences have expired, regardless of the
collateral consequences of their sentence.
Commonwealth v. Hart, 911 A.2d 939, 941-942 (Pa. Super. 2006) (some
citations omitted).
Here, the PCRA court concluded Appellant was unable to meet the
eligibility requirements in Subsection 9543(a)(1) because he has served his
sentence in full. PCRA Court Opinion, 12/4/19, at 3-5. While Appellant does
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not dispute that he has served his sentence, he argues that “the trial court
should have addressed the Petition on the merits in an expedited fashion due
to the fact that [his] sentence was due to expire in a little more than two
months” from the time of his filing the PCRA petition. Appellant’s Brief at 17.
Furthermore, Appellant argues that the PCRA court:
should have found jurisdiction under Commonwealth v. Delgros
because [Appellant] did not have the opportunity to raise
ineffective assistance of counsel prior to the expiration of his
sentence. [Commonwealth v. Delgros,] 183 A.3d 352 (Pa. 2018)
(finding new exception to PCRA jurisdiction requirements for
defendants sentenced to fines and/or no further penalty).
Appellant’s Brief at 17.
In addressing Appellant’s claims, the PCRA court explained:
This [c]ourt initially addressed Appellant’s claims that error
was committed “in denying the PCRA Petition because the [c]ourt
should have found that [Appellant] could obtain relief under the
[PCRA] even after the expiration of his probation because he had
no other opportunity to seek relief through no fault of his own;”
and that he should have been afforded an expedited hearing.
Appellant’s PCRA Petition was filed on September 3, 2018, with
his state probationary sentence to expire on November 6, 2018.
Error was not committed.2
2 While the [c]ourt’s Notice of Intent to dismiss
erroneously stated that PCRA Dismissal was to be
based on meritless claims, it is clear that Appellant
knew and the [c]ourt did in fact dismiss because of
the jurisdiction issue relating to the expiration of
Appellant’s sentence.
42 Pa.C.S.A. § 9543. (a)(1) (i) Eligibility for Relief under the
PCRA provides:
(a) General rule.—To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
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(1) That the petitioner has been convicted of a crime under
the law of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime.
This jurisdictional requirement has been consistently upheld by
[t]he [a]ppellate [c]ourts of the Commonwealth of Pennsylvania.
[Commonwealth v. Plunkett, 151 A.3d 1108, 1109-1110 (Pa.
Super. 2016).] Appellant, can[]not escape the plain language of
the statute even though his Petition was filed roughly two and one
half (2 1/2) months prior to the expiration of his sentence.
Appellant points to no authority and/or rationale for an expedited
disposition of the PCRA other than his impending expiration of
probation.
There were no circumstances under which Appellant’s PCRA
[petition] could have been resolved in the short period of time
between filing and the sentence expiration. At the outset, it was
unrealistic for Appellant to suggest that his matter take
precedence over other PCRA litigants, who through the normal
progression of the PCRA time frame, await disposition. Moreover,
the Commonwealth was entitled [to] an opportunity to review and
respond to the over two hundred and fifty points raised towards
Appellant’s claims of ineffectiveness and court err[or]. Thereafter,
the [c]ourt would need ample time, consistent with its trial
schedule and other PCRA matters, to give careful consideration to
Appellant’s numerous claims and the Commonwealth’s response.
If the [c]ourt’s review warranted an evidentiary hearing, time
would have to be allocated to schedule, conduct and decide such
a hearing. Should Appellant not have been satisfied with any
decisions of this [c]ourt, the [a]ppellate process may have been
initiated. None of the stages involved in the PCRA review,
including an appeal, would have been concluded within the short
time frame prior to the expiration of Appellant’s sentence.
An expedited hearing was [] not warranted. This [c]ourt
was neither obligated nor required to grant an expedited PCRA
Hearing. Moreover, Appellant failed to proffer any requirements
for such a hearing. Also, an expedited hearing would have been
futile in Appellant’s effort to circumvent the statutorily mandated
jurisdictional deadline.
PCRA Court Opinion, 12/4/19, at 3-5.
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We agree with the PCRA court’s conclusion. There is no requirement
that a PCRA court provide an expedited hearing when a PCRA petition is filed
close to the end of a petitioner’s sentence. Indeed, Appellant fails to cite to
any precedent supporting this claim.
Moreover, Appellant is not entitled to relief under the holding in
Delgros. In Delgros, our Supreme Court “granted allowance of appeal to
determine whether a defendant, who is ineligible for statutory collateral review
because he was sentenced to pay a fine without incarceration or probation,
may obtain review of ineffective assistance of counsel claims presented in
post-sentence motions filed in the trial court.” Delgros, 183 A.3d at 353. In
that case, the appellant was charged with a third degree felony for receiving
stolen property. Id. at 354. Following a jury trial, the appellant was convicted
of this offense and sentenced to pay restitution and a fine. Id. The appellant
obtained new counsel and filed post-sentence motions seeking a new trial
and/or arrest of judgment, raising, inter alia, the issue of ineffective assistance
of counsel. Id.
With regard to the claims of ineffectiveness of counsel, the trial court
concluded that the appellant was not entitled to relief because the assertions
of ineffectiveness constituted collateral claims that could only be raised
pursuant to the PCRA. Delgros, 183 A.3d at 354. The court reasoned that
Subsection 9543(a)’s eligibility requirement of current incarceration,
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probation, or parole, precluded PCRA relief for those petitioners sentenced
only to pay a fine. Id. at 355.
On appeal to Superior Court, the appellant contended, inter alia, that
the trial court erred by declining to entertain his ineffective assistance of
counsel claims. Delgros, 183 A.3d at 355. The appellant argued that while
this Court in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), set
forth a general rule deferring ineffective assistance of counsel claims to
collateral review under the PCRA, the Supreme Court created exceptions to
that rule permitting ineffectiveness claims to be presented in post-sentence
motions and on direct appeal under limited circumstances. Delgros, 183 A.3d
at 355. He further maintained that absent the opportunity to challenge his
trial counsel’s stewardship in post-sentence motions, he would be denied the
opportunity to litigate his Sixth-Amendment right to competent representation
at trial, thereby depriving him of due process. Id. The Superior Court
affirmed the appellant’s judgment of sentence, rejecting, inter alia, his
contention that the trial court erred by refusing to entertain his ineffectiveness
claims. Id. at 355-356.
As noted, the Supreme Court granted allocatur to address whether the
appellant, who was ineligible for collateral review under the PCRA because he
was sentenced only to pay a fine, was entitled to review of ineffective
assistance of counsel claims presented in post-sentence motions. Delgros,
183 A.3d at 356. In addressing this issue, the Supreme Court held, “[T]o
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ensure that defendants are afforded an opportunity to challenge trial counsel’s
stewardship, we adopt an additional exception to Grant’s general deferral
rule, requiring trial courts to address claims challenging trial counsel’s
performance where the defendant is statutorily precluded from obtaining
subsequent PCRA review.” Delgros, 183 A.3d at 361.
Accordingly, the holding in Delgros is inapplicable to the case before
us. Unlike the appellant in Delgros, Appellant herein was sentenced to
incarceration and probation; thus, he was not statutorily precluded from
obtaining subsequent PCRA review. Moreover, the holding in Delgros is
limited to cases in which claims of ineffectiveness are raised in post-sentence
motions on direct appeal. Delgros, 183 A.3d at 362-363. Additionally, the
Supreme Court stated:
[W]e find that this Court’s ruling in Commonwealth v. Turner,
which involved a PCRA petitioner and not a defendant presenting
ineffectiveness claims in post-sentence motions, has no bearing
on our decision.9
9 As noted, this Court in [Commonwealth v. Turner,
80 A.3d 754 (Pa. 2013)] held that the PCRA’s
eligibility requirement that the petitioner be “serving
a sentence of imprisonment, probation or parole” did
not deny the petitioner due process where she was no
longer in custody and had previous opportunities to
present ineffectiveness claims.
Delgros, 183 A.3d at 363. Here, Appellant raised these ineffectiveness claims
in a PCRA petition. Appellant’s reliance on the holding in Delgros is
misplaced. Thus, Appellant is not entitled to relief because he has failed to
meet the eligibility requirements under Subsection 9543(a) of the PCRA.
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Order affirmed.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/20
____________________________________________
3 Although in its notice of intent to dismiss, the PCRA court indicated that
Appellant’s PCRA petition was being dismissed because “the issues raised in
the [PCRA] Petition are without merit,” we can affirm the PCRA court’s order
on any basis. See Commonwealth v. Williams, 35 A.3d 44, 47 (Pa. Super.
2011) (This Court may affirm a PCRA court’s decision “if there is any basis to
support it, even if we rely on different grounds to affirm.”). We further note
the PCRA court’s conclusion in its Pa.R.A.P. 1925(a) opinion that the PCRA
petition was dismissed for lack of eligibility due to the expiration of Appellant’s
sentence. PCRA Court Opinion, 12/4/19, at 3 n.2.
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